Oorah, Inc. Vs. Marvin Schick, et al.

Filing 128

MEMORANDUM & ORDER: Defendants motion is denied. See attached memorandum and order for details. Ordered by Senior Judge Frederic Block on 11/28/2011. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OORAH, INC.,
Plaintiff,
-against-

MEMORANDUM AND ORDER
Case No. 09-CV-0353 (FB) (JO)

MARVIN SCHICK, THE JEWISH
FOUNDATION SCHOOL, and THE RABBI
JACOB JOSEPH SCHOOL,
Defendant.
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Appearances:
For the Plaintiff:
FREDERICK L. WHITMER, ESQ.
Kilpatrick Townsend & Stockton LLP
31 West 52nd Street, 14th Floor
New York, New York 10019
RONALD D. COLEMAN, ESQ.
JOEL G. MACMULL, ESQ.
Goetz Fitzpatrick LLP
One Penn Plaza – Suite 4401
New York, New York 10119

For the Defendants:
ELI FEIT, ESQ.
JOSEPH S. SCHICK, ESQ.
Heller Horowitz & Feit, P.C.
292 Madison Avenue
New York, New York 10017
NOAH BURTON, ESQ.
Patton Boggs
One Riverfront Plaza
Newark, New Jersey 07102

BLOCK, Senior District Judge:
Defendants Jewish Foundation School (JFS) and Rabbi Jacob Joseph School
(RJJ) (collectively, the “School”) move for reconsideration of Judge Dearie’s March 31, 2011,
Order, which declined to adopt Magistrate Judge Orenstein's Report and Recommendation
(R&R) in full. Specifically, Judge Dearie deviated from the R&R by (1) denying defendants’
summary judgment motion with respect to plaintiff’s breach of contract claim; and (2)
denying defendants’ motion for summary judgment on their breach of contract

counterclaim. Defendants urge the Court to reconsider Judge Dearie's decision and adopt
the R&R in its entirety.
Defendants’ motion is denied. The following claims will proceed to trial:
(1)

Plaintiff’s breach of contract claim.

Whether the parties entered an

enforceable non-disparagement agreement – which, like all contracts, requires “offer,
acceptance, consideration, mutual assent and intent to be bound,” Leibowitz v. Cornell Univ.,
584 F.3d 487, 507 (2d Cir. 2009 ) (internal quotations omitted) – is an open factual issue;
(2)

Defendants’ breach of contract counterclaim, which is based on the parties’

agreement that plaintiff Oorah, Inc. (“Oorah”) would pay tuition for each student it placed
at JFS for the duration of the student’s tenure there.
(a) Whether this agreement was terminated is a open factual question. If
not, Oorah breached the contract by refusing to pay tuition;
(b) If Oorah is found liable for breach of contract, the School must prove its
damages. Oorah may attempt to show that the School – by continuing to educate the
students, despite Oorah’s unwillingness to pay tuition – failed to make reasonable efforts
to mitigate its damages;
(3)

Defendants’ unjust enrichment counterclaim. Because this quasi-contract

counterclaim is barred if a valid contract exists, see Diesel Props S.r.l. v. Greystone Business
Credit II, LLC, 631 F.3d 42, 54 (2d Cir. 2011), it will be considered only if the School’s breach
of contract counterclaim fails. To prevail, the School must establish that Oorah was
enriched at the School’s expense, and that “the circumstances were such that in equity and

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good conscience” Oorah should provide compensation. CompuDyne Corp. v. Shane, 453
F.Supp.2d 807, 833 (S.D.N.Y. 2006).
SO ORDERED.
____________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
November 28, 2011

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